JAGPAL SINGH AULAK Vs. CHATTAR SINGH AULAK

JUDGEMENT

(1.) Plaintiff has filed application under Order XII Rule 6 read with Section 151, Civil Procedure Code which is being contested by filing reply by the defendants. Since the averments made in the application refer to the plaint allegations and admissions made in the written statement, I propose to straightway narrate the case as set up by the parties in the pleadings.

(2.) It is, inter-alia, alleged in the plaint that Lahora Singh Aulak who owned immoveable and moveable properties, died at Birmingham (U.K.) on 27.9.90 leaving behind the plaintiff, defendants 1 & 2 (sons), Smt.Amar Jeet Kaur, Smt.Ravinder Kaur, Smt.Rajinder Kaur, and Km.Noblejit Kaur (daughters). His wife, Smt.Mohinder Kaur Aulak had earlier died on 6.9.89. Aforesaid Lahora Singh Aulak executed a Will dated 26.2.90 which was duly registered at Dehradun (U.P.). Under the Will he had bequeathed all his immoveable and moveable properties to the plaintiff and defendant 1 & 2 in equal shares with certain stipulation. It is further alleged that soon after the death of Lahora Singh Aulak, defendants 1 & 2 started causing harassment to the plaintiff and his family. They did not pay the share of the plaintiff in the income from the agricultural land failing in Khaara Nos.12/19(4-8), 20(1-9), 21(3-15), 22(4-16), 31(2-2), 32(0-19), 35(0-6), 36(0-2), 18/1(4-16). 2(4-16), 10(6-12), 19/5(1-7), and 6(4-12), total measuring approximately 36 bighas situated in village Kapashera, Delhi. Eatimated annual income from the paid land is about Rs.5,00,000.00 . Aforesaid Lahora Singh Aulak also owned property popularly known as Standard Hotel in Jalandhar and a plot measuring about 1,000 sq.yds. in Mohali near Chandigarh. Property at Jalandhar is in possession of various tenants while plot at Mohali is in joint possession of the plaintiff and defendants 1 & 2. Estimated annual income from both these properties is about Rs.1,00,000.00 out of which plaintiff is entitled to 1/3rd share which he has not been paid. It is stated that the plaintiff has no intention to sell or alienate his 1/3rd share in the immovable properties mentioned in schedule-I and movable properties mentioned in schedule-II annexed to the plaint until his eldest living male child attains the age of 21 years as provided under the said Will. It use prayed that a decree of declaration be passed in favour of the plaintiff and against the defendants thereby declaring that the plaintiff is entitled to 1/3rd share in the immoveable and moveable properties as incorporated in the Will dated 26.2.90. Preliminary decree for partition and rendition of accounts in respect of the properties noted in schedules I & II to the extent of 1/3rd share is further sought to be passed besides decree of permanent injunction against the defendants.

(3.) Defendants in their joint written statement by way of preliminary objection No.4 have alleged that there is no dispute with record to the execution of the Will left by Lahora Singh Aulak and they at no point of time disputed 1/3rd share of the plaintiff in the properties left by the deceased. However, the share of the plaintiff in the properties is subject to the limitations contained in the Will itself. By way of preliminary objection No.5 it is pleaded that the defendants have already got mutated 1/3rd share in the name of the plaintiff in the land situated at Kapashera vide order of the Settlement Officer dated 28.4.93. By way of preliminary objections 6 & 7 it is stated that the defendants have instructed the concerned bankers where the fixed deposits which came to their notice belonging to Lahora Singh Aulak were lying, to make separate fixed deposits in the name of the plaintiff to the extent of 1/3rd share. Defendants have no objection if the same arrangement is made in respect of the other fixed deposits as may be in the notice of the plaintiff as well as for the other moveable properties left behind by Lahora Singh Aulak. In para No.6 of the written statement on merit, it is further stated that defendants have no objection to the rendition of accounts of the income and the expenses qua the agricultural land situated at Kapashera. In para No.17 of the written statement, it is stated that plot at Mohali is lying vacant and there is no income from the plot. Property located at Jalandhar is in possession of the brother of deceased Lahora SIngh Aulak who had been managing it as his attorney. For want of knowledge it is denied that the said property is fetching annual income of Rs.1,00,000.00 , as alleged. In para No.6 of the written statement on merit, it is also alleged that the plaintiff is incapable of protecting his interest and the suit as filed without a next friend cannot proceed.